Copyright News
| Publication year | 2021 |
| Author | Jo Ardalan |
Jo Ardalan
One LLP
A unanimous Second Circuit Court of Appeals panel affirmed a judgment against BuzzFeed, Inc. that turned on "a relatively novel issue" concerning the interpretation of Section 1202(b)(3) of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1202(b) (3).1 At issue was whether plaintiff Gregory Mango was required to prove that Buzzfeed knew, or had reasonable grounds to know, that removing Mango's copyright management information ("CMI") in conjunction with a photograph it made publicly accessible would lead to third-party infringements. In holding that the DMCA does not impose such a requirement,2 the Second Circuit distinguished the Ninth Circuit's 2018 decision in Stevens v. Corelogic, Inc.3
Mango is a freelance photographer who took a picture of Raymond Parker, the lead figure in a discrimination lawsuit filed by federal prosecutors against the City of New York.4 After licensing the use of the photograph, the New York Post published it with a "gutter credit" below the photograph attributing it to Mango. Three months later, a reporter for Buzzfeed, an online news reporting and video programming service, not only used the photograph in an article on Parker without permission but substituted Parker's attorneys' law firm's name for Mango's in the gutter credit.5
Mango sued Buzzfeed for copyright infringement and for the removal of CMI, which may accompany copies of a protected work. CMI includes the title and author of the work, its copyright owner, and the terms and conditions for using it.6
Section 1202(b) prohibits the distribution of a copyrighted work (i) with knowledge "that [CMI] has been removed or altered" without authorization and (ii) "knowing, or...having reasonable grounds to know, that [such distribution] will induce, enable, facilitate, or conceal [a copyright] infringement."7 Section 1202 also prohibits the falsification of copyright management information.8
The district court concluded that Section 1202(b)(3) imposes a "double-scienter" requirement for liability, requiring proof that the defendant had (1) "actual knowledge...that CMI was removed and/or altered without permission," and (2) "constructive knowledge...[that] such distribution 'will induce, enable, facilitate, or conceal an infringement.'"9 Because the second factor does not limit the infringement by scope or time, it concluded that an infringement by...
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